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Tuesday, 13 March 2012

Vienna Convention on Diplomatic Relation 1961

In terms of near-universal
participation by sovereign States, the high degree of observance among
States parties and the influence it has had on the international legal
order, the Vienna Convention on Diplomatic Relations may claim to be the
most successful of the instruments drawn up under the United Nations
framework for codification and progressive development of international
law. Its success is due not only to the excellence of the preparatory
work by the International Law Commission and the negotiating skills of
State representatives at the Conference, but also to the long stability
of the basic rules of diplomatic law and to the effectiveness of
reciprocity as a sanction against non-compliance.

Historical Context

Among all peoples who wished to
engage with each other on a basis other than that of conquest and
subjugation, it was practice from the earliest times that the person of
the envoy or intermediary between them was sacrosanct. Until it was
accepted – originally as a matter of religious scruple – that the herald
or emissary could pass safely in order to negotiate terms of truce or
agreements to settle quarrels, there could be no peaceful international
relations or rules on questions of substance. The personal inviolability
accorded to envoys, for example among the ancient Greek cities and
among the states of ancient India, became of less importance with the
rise of the Roman Empire and later of Byzantium – both of these intent
on subjugation rather than co-existence. Diplomacy in the modern sense
revived with the Renaissance and during the sixteenth century – a period
of violent religious strife – the special protection and immunity from
criminal jurisdiction even for ambassadors suspected of conspiracy
against the sovereign to whom they were accredited became established in
practice among sovereign rulers. By the time of the Congress of
Westphalia in 1648, permanent legations were accepted as the normal way
of conducting international business among sovereign States, and over
the next century detailed rules emerged in relation to the immunity of
ambassadors and their accompanying families and staff from civil as well
as criminal proceedings, the inviolability of their embassy premises
and their exemption from customs duties and from taxes. These rules of
customary international law were described in detail by early writers
such as Grotius (1625), Bynkershoek (1721) and Vattel (1758).

The first international instrument
to codify any aspect of diplomatic law was the Regulation adopted by the
Congress of Vienna in 1815 which simplified the complex rules on the
classes of heads of diplomatic missions and laid down that precedence
among heads of missions should be determined by date of arrival at post.
Until then precedence – which guaranteed direct access to the receiving
sovereign as well as ceremonial honours – had caused numerous and
bitter disputes. Codification among States of immunities and privileges
of diplomatic agents did not begin until the Havana Convention of 1928
drawn up among the States of the Pan-American Union – but this did not
well reflect current practice either in its terminology or its rules.
More influential was the Draft Convention drawn up in 1932 by the
Harvard Research in International Law.

The establishment within the United
Nations framework of the International Law Commission opened the way to
comprehensive codification to confirm what were accepted as
well-established – if not universally respected – rules of international
law. There remained areas on which State practice was divergent – in
particular the privileges and immunities of junior staff, the position
of a diplomat who was a national of the host State and the extent of
exceptions to the immunity from jurisdiction of a diplomat – so that any
convention would contain an element of “progressive development” as
well as codification of the law.

Negotiating History

The preparatory work for the Vienna
Conference followed the standard United Nations procedure for the
codification of international law – applied in fields where there is
already extensive State practice, precedent and doctrine. In 1952,
Yugoslavia proposed that the topic should be given priority, and after
discussion in the Sixth (Legal) Committee, the General Assembly
requested the International Law Commission to undertake as a priority
topic codification of the law of diplomatic intercourse and immunities.
The Commission appointed Mr. Sandström of Sweden as Special Rapporteur
and his report formed the basis for the draft articles adopted by the
Commission in 1957. These articles were debated in the Sixth Committee
of the General Assembly and sent to all members of the United Nations or
any of its specialized agencies with an invitation to submit comments.
Comments from 21 Governments were taken into account by the Commission
who in 1958 prepared revised and extended articles and recommended that
they should form the basis for a Convention – a decision endorsed by the
General Assembly. Eighty-one States took part in the Conference held at
Vienna from 2 March to 14 April 1961 and the Convention was signed on
18 April.

The success of the Conference and
of the Convention which it drew up may be ascribed first to the fact
that the central rules regulating diplomatic relations had been stable
for over 200 years. Although the methods of setting up embassies and
communicating with them had radically changed, their basic functions of
representing the sending State and protecting its interests and those of
its nationals, negotiation with the receiving State, observing and
reporting on conditions and developments there remained and still remain
unaltered. Secondly, because the establishment of diplomatic relations
and of permanent missions takes place by mutual consent, every State is
both a sending and receiving State. Its own representatives abroad are
in a sense hostages who may on a basis of reciprocity suffer if it
violates the rules of diplomatic immunity, or may be penalized even for
minor restrictions regarding privileges or protocol. There was at the
1961 Vienna Conference no general underlying conflict of interest
between opposing groups of States.

The exception to this symmetry of
interests lies in the matter of communications between the embassy and
its sending State – and this was apparent at the Vienna Conference where
probably the most controversial issue was whether sending States were
entitled as of right to install and use a wireless transmitter. Although
the right of free communication between the sending State and its
missions abroad was long established in terms of the inviolability of
couriers and the diplomatic despatches which they carried – so that any
interference was covert and denied if discovered – in 1961 only those
States with advanced technological resources operated transmitters.
Other States expressed concern that these transmitters might be used for
broadcasting local propaganda, and that because they were situated in
inviolable premises beyond the control of the receiving State they might
lead to breaches of the International Telecommunication Convention. An
amendment which would have expressly required not only the consent of
the receiving State for a wireless transmitter but also “proper
arrangements for its use in accordance with the laws of the receiving
State and international regulations” was adopted by the Committee of the
Whole Conference against the wishes of all major States. In plenary
session, however, a compromise was reached, and the above words within
quotes – which might have implied a right of inspection for the
receiving State – were withdrawn.

This example illustrates the
readiness of the delegates to the 1961 Vienna Conference to seek
compromise solutions which would make the final Convention text
acceptable to the Governments and national parliaments who would later
decide on ratification rather than to press home the advantage of
numbers. A similarly constructive approach was also shown over the
controversial matter of the diplomatic bag. Under previous customary
practice it was permissible for a receiving State suspecting that a
diplomatic bag contained material other than permitted official
documents and equipment to challenge the courier – upon which the
sending State could either return the suspect bag unopened or submit it
to inspection supervised by the authorities of both States. There was
prolonged controversy in the International Law Commission as to whether
this possibility should be retained, but ultimately it was decided that
although there was a duty on the sending State to use the bag only for
diplomatic documents or articles for official use, the bag could not be
opened or detained under any circumstances. Despite numerous amendments
and arguments in the Conference, this was the rule ultimately adopted in
article 27.

A third question where previous
State practice was inconsistent was the extent of immunities and
privileges accorded to the administrative and technical staff of a
mission – junior employees without diplomatic rank such as secretaries,
translators and senior security staff. In some States these had been
given the same immunities and privileges as diplomats while in others
their immunity was limited to their official acts. The International Law
Commission, after much argument, proposed that they should be given
full diplomatic immunities and privileges and some States at the
Conference supported this approach, while others expressed concern – in
particular at possible abuse of full customs privileges. The Conference
limited exemption from customs duties for junior staff to articles
imported on first arrival at post and later – after it seemed that there
might be a total failure to agree on the immunity to be given to
administrative and technical staff – accepted a United Kingdom
compromise under which they would enjoy full immunity from criminal
proceedings, but would not enjoy immunity from civil and administrative
proceedings for acts performed outside the course of their duties. They
can therefore be sued in respect of a road traffic accident occurring
while they are off duty or for other matters unrelated to their work for
the mission.

Key Provisions

The Vienna Convention provides a
complete framework for the establishment, maintenance and termination of
diplomatic relations on a basis of consent between independent
sovereign States. It specifies the functions of diplomatic missions, the
formal rules regulating appointments, declarations of persona non grata
of a diplomat who has in some way given offence, and precedence among
heads of mission. It sets out the special rules – privileges and
immunities – which enable diplomatic missions to act without fear of
coercion or harassment through enforcement of local laws and to
communicate securely with their sending Governments. It makes provision
for withdrawal of a mission – which may take place on grounds of economy
or physical security – and for breach of diplomatic relations which may
occur in response to abuse of immunity or severe deterioration in
relations between sending and receiving States. In either of these cases
– or where permanent missions have not been established – a framework
is provided for the interests of each sending State to be protected in
the receiving State by a third State.

Article 22 confirms the
inviolability of mission premises – barring any right of entry by law
enforcement officers of the receiving State and imposing on the
receiving State a special duty to protect the premises against
intrusion, damage, disturbance of the peace or infringement of dignity.
Even in response to abuse of this inviolability or emergency, the
premises may not be entered without the consent of the head of mission.
Article 24 ensures the inviolability of mission archives and documents –
even outside mission premises – so that the receiving State may not
seize or inspect them or permit their use in legal proceedings.

Article 27 guarantees free
communication between a mission and its sending State by all appropriate
means, and ensures that the diplomatic bag carrying such communications
may not be opened or detained even on suspicion of abuse. Given the
purposes of diplomatic missions, secure communication for information
and instructions is probably the most essential of all immunities.

Article 29 provides inviolability
for the person of diplomats and article 31 establishes their immunity
from civil and criminal jurisdiction – with precise exceptions to
immunity from civil jurisdiction where previous State practice had
varied. Immunity from jurisdiction – like other immunities and
privileges – may be waived by the sending State, and article 32
specifies the rules on waiver. Article 34 sets out the tax exemption
accorded to diplomats along with detailed exceptions in respect of
matters unrelated to their official duties or to ordinary life in the
receiving State. Article 36 provides for exemption from customs duties
on diplomatic imports throughout a diplomat’s posting.

Articles 37 sets out a complex code
for the treatment of families and junior staff – where as pointed out
above previous practice was varied and negotiation of a compromise
difficult. Article 38 bars from all privileges and immunities, except
for immunity for their official acts, nationals and permanent residents
of the receiving State. These two provisions in many States drastically
reduced the numbers of those persons more likely to bring into disrepute
the system of privileges and immunities and were fully in accordance
with the basic justification applied throughout the Convention of
limiting immunities to what is essential to ensure the efficient
performance of the functions of diplomatic missions as representing
States.

Influence of the Vienna Convention on Diplomatic Relations

The Convention has established
itself as a cornerstone of modern international relations. Despite the
need for implementing national legislation in a number of States, it
came into force following 22 ratifications only three years from its
adoption and almost all States in the world are now parties. The régime it
sets out for the conduct of diplomatic relations has become remarkably
uniform as reservations made by ratifying States on a few points which
had been controversial during the negotiations have in many cases been
withdrawn or simply never applied. The Convention has proved resilient
to attack on its fundamental principles. This came during the 1980s from
those alarmed at the opportunities it provided for abuse – as
demonstrated in particular when following the murder of a policewoman by
shooting from the premises of the Libyan diplomatic mission in London
the United Kingdom broke diplomatic relations and all those within the
mission left England under the shield of immunity. More recently attacks
have come from scholars concerned at the conflict between immunity and
the human right of access to justice, or at immunity for violators of
international criminal law and in particular torturers. But in practice
there has been remarkably little erosion of the immunities of diplomats
as it has been widely accepted that the Convention rules limit
immunities to what is essential for the functioning of diplomacy.

The focus of public concern has
instead shifted to the vulnerability of diplomats to terrorist attacks.
These might take the form of kidnapping diplomats with demands for
ransom or release of prisoners – a serious problem in the 1970s until
brought somewhat under control by collective determination by
Governments that taking “all appropriate measures” to protect diplomats
did not mean capitulating to blackmail. Alternatively terrorism might
involve besieging or bombing embassies – most horrifically the United
States Embassies in Kenya and Tanzania in 1998. For the most part,
parties to the Convention are in no way complicit in these attacks and
have done their best to provide protection – sometimes helped by
wealthier sending States. The striking exception was the detention for
over a year of the hostages in the United States Embassy in Tehran with
the acquiescence of the relatively new revolutionary Government of Iran.
The United States brought proceedings against Iran before the
International Court of Justice basing itself mostly on the Vienna
Convention on Diplomatic Relations including the Optional Protocol on
the Settlement of Disputes to which both States were parties. Iran did
not make serious efforts to justify its conduct in legal terms before
the Court and the Court’s Judgment in the United States Diplomatic and Consular Staff in Tehran case (I.C.J. Reports, 1980)
contains important analysis of many of the principles in the Convention
and greatly assisted the United States in retaining the support of the
international community and securing eventual release – brokered by
Algeria – of the hostages. More recently, the International Court upheld
a counter-claim by Uganda in the Case concerning Armed Activities
on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda) (I.C.J. Reports 2005) that Congolese soldiers had occupied
the Ugandan diplomatic mission in Kinshasa and violated article 29 of
the Convention by threatening and maltreating staff on the premises.

In national courts there have been
hundreds of cases where the Vienna Convention has been applied, since
many of its most frequently invoked provisions concern whether a
national court may assume jurisdiction over civil or criminal
proceedings and what evidence may be admissible in national proceedings.
Most of these cases concern ambiguities in the text on such questions
as the true meaning of the exceptions to immunity from civil
jurisdiction, the construction of the term “permanent resident”, the
protection of an embassy’s bank account from enforcement proceedings, or
the balance to be struck between protecting the dignity of embassy
premises and permitting effective exercise of human rights to
demonstrate and to speak freely. Unlike the cases described in the
previous paragraph, they did not involve fundamental breaches of the
Convention.

The Convention has also been
extensively drawn on by later treaties regulating immunities and
privileges. Its provisions were used as a starting point in drawing up
the 1963 Vienna Convention on Consular Relations and the 1969 New York
Convention on Special Missions – in the latter case with unfortunate
results in that insufficient account was taken of the differences
between permanent missions and most special missions so that the
Convention has attracted only limited support. It is used as a point of
reference for determining the treatment to be accorded to the premises,
archives and senior officers of a substantial number of international
organizations. Sometimes it is used on a similar basis for agreements
with the host State regulating the status of military forces or civilian
missions despatched either by international organizations or by States
providing military or civilian assistance. The 2004 United Nations
Convention on Jurisdictional Immunities of States and Their Property
contains references to its provisions, since in the nature of things the
rules on state immunity and on diplomatic immunity, though different in
their origins and justification, are closely intertwined. As for the
treatment given to heads of State, heads of Government and foreign
ministers in their personal capacity – though practice is somewhat
varied – it is accepted that the rules in the Vienna Convention on
Diplomatic Relations form a guide and perhaps a minimum standard.

Diplomatic Privileges and Immunities, Harvard Research
in International Law, 1932, American Journal of International Law, vol.
26 (Supp 1932), p. 15.

Report by Mr. A.E.F. Sandström, Special Rapporteur, Diplomatic Intercourse and Immunities, (A/CN.4/91 (French only), Reproduced in the Yearbook of the International Law Commission, 1955, vol. II).

Observations of Governments on the draft articles
concerning diplomatic intercourse and Immunities adopted by the
International Law Commission at its ninth session in 1957, Diplomatic
intercourse and immunities, (A/CN.4/114 and Add.1-6, Reproduced in the Yearbook of the International Law Commission,1958 , vol. II.

Report by Mr. A.E.F. Sandström, Special Rapporteur,
Revised draft articles, Diplomatic Intercourse and Immunities, (A/CN.4/116/Add.1 and 2, Reproduced in the Yearbook of the International Law Commission, 1958, vol. II).

Report of the International Law Commission covering the
work of its tenth session, 28 April -4 July 1958, Official Records of
the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859, Reproduced in the Yearbook of the International Law Commission, 1958, vol. II, chapter III).

United Nations Conference on Diplomatic Intercourse and Immunities, Vienna – 2 March - 14 April 1961, Official Records, Volume I: Summary Records of Plenary Meetings, and of Meetings of the Committee of the Whole (A/CONF.20/14).